New Issue at the Bargaining Table

Submitted by Robert B. Archibald on June 28, 2005 - 4:00am

The City University of New York will have to talk intellectual property with its faculty union around the collective bargaining table. A state appeals court ruled[1] this month that CUNY should not have adopted a new policy governing intellectual property rights without first negotiating with the union.

The previous intellectual property agreement between CUNY and the Professional Staff Congress, an affiliate of the American Federation of Teachers, which represents 20,000 faculty and professional staff members at CUNY, was last altered in 1986. It dictated that any material produced using CUNY Research Foundation funds belonged to the creator, but that royalties would be divided between the creator and the college, based on their respective contributions. Patents for any inventions were to be assigned to the foundation with 35 percent of proceeds given to the inventor, and the rest to the inventor’s college. That policy spanned multiple collective bargaining agreements, until November 2002.

At that time, weeks after the expiration of a collective bargaining agreement, the CUNY trustees adopted a new intellectual property policy. According to the university the new policy is better for faculty members than the old one. The new policy[2] increased the faculty share on patent proceeds to 55 percent, and extended faculty ownership of copyrights to everything produced, whether from a university grant or not.

But the union took issue with some other aspects of the policy. "They took all computer code under patents, not copyrights,” said Steve London, first vice president of the Professional Staff Congress. Patents are owned by CUNY, whereas copyrights are the property of the author. “Our main bargaining demand on the table is that the presumption is both patents and copyrights are owned by the creator unless we negotiate the limitations.”

London, an associate professor of political science at Brooklyn College, added that the new division of patent proceeds is an improvement, “but it’s still not our view of what they should be,” he said. Perhaps the biggest problem that the union had was that CUNY refused to negotiate the policy. Even some faculty members who embrace the new policy would have rather discussed it as part of collective bargaining. “It’s not a bad policy,” said Susan O’Malley, an English professor at Kingsborough Community College and head of the Faculty Senate. “It’s the principle of it.”

Experts expect intellectual property rights to be of growing importance in faculty contract negotiations as the digital age matures. “With virtual classrooms and online universities, I expect it to be the issue in the next 10 to 15 years,” said Richard Boris, executive director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions, at CUNY’s Hunter College.

Boris said that solutions to intellectual property rights issues around the country have been mere “Band-Aids,” and that the template for the future has yet to appear. “It has always been that one writes an article using the facilities of a university, and [the author] had the rights to the material. Now the intellectual work can be disseminated digitally and we no longer need the intermediary of publishers.”

Under the collective bargaining agreement that expired in 2002, CUNY had the right to unilaterally adopt new policies for anything not already specified in the contract, such as an intellectual property stance. CUNY felt that that power continued once the contract expired, even before a new one was settled upon. The court found, however, that, according to state civil service law, once the agreement expired, so did the union’s effective “waiver” of its right to negotiate all policies not specified in the contract.

In reversing the decision of the Public Employment Relations Board, the court agreed that CUNY maintains the right to act unilaterally on policies not specified in an agreement, but, with the agreement expired, the university must allow policies covered by the previous agreement to be negotiated for the next contract. Whereas the university previously told the union it would not negotiate the intellectual property policy, CUNY is now forced to allow the union to bend its ear.

CUNY faculty members have been without a contract since October 31, 2002, and negotiations are currently under way on a new agreement.

According to Frederick Schaffer, CUNY's vice chancellor for legal affairs, the court confirmed CUNY’s right to unilaterally make policies, but said the university can no longer refuse the union’s right to negotiate those policies. “It was a win for the union insofar as the court held that after the expiration of the contract, the university is obligated to collectively bargain over its intellectual property policy.”

Union officials were effusive about what they saw as a total victory. “Now we have a unanimous decision upholding our position that they are legally bound to negotiate concerning intellectual property,” London said. “This is a big win for the PSC, but also importantly a win for all the public employees of New York State.”